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ELCDismissedNot stated in judgment (Originating Summons filed November 5, 2021, with Notice of Motion of even date)· [2022] KEELC 2538 (KLR)

Wilson & 3 others v Shah (Environment and Land Case Civil Suit 225 of 2021) [2022] KEELC 2538 (KLR)

Environment and Land Court
5 July 2022
4,910 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Mombasa court rejected squatters' bid to block eviction, ruling that simply living on land for over 12 years is not enough to claim ownership through adverse possession.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (L. L. Naikuni J) on the Applicants' Notice of Motion dated November 5, 2021 seeking a temporary injunction to restrain Janendra Raichand Shah from evicting them from Sub-division No. 890 (Original No. 284/99 SEC III MN) measuring 10.65 Ha, pending determination of an Originating Summons claiming title by adverse possession. The Respondent opposed the application through a Notice of Preliminary Objection arguing that the suit offended Section 7 of the Limitation of Actions Act and was barred by res judicata and laches, citing a judgment delivered on March 9, 2021 by C.K. Yano J in ELC 233 of 2009 declaring him the registered owner. The court framed three issues. On the preliminary objection, applying Mukisa Biscuits and George Kamau Kimani, it held that res judicata and laches require ascertainment of facts and reference to pleadings and so cannot be sustained by way of preliminary objection; the objection was dismissed. On the injunction, applying Giella v Cassman Brown, Mrao and Nguruman, the court held the Applicants failed to establish a prima facie case of adverse possession, as they did not show when they dispossessed the registered owner, and mere occupation exceeding 12 years does not prove adverse possession; the application was dismissed without considering the other Giella limbs. The court also found it was not demonstrated that the Applicants were parties to ELC 233 of 2009, a matter for full trial. The court dismissed both the objection and the application, directed that the Originating Summons be heard within 180 days with a pre-trial conference on September 28, 2022, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Respondent's Preliminary Objection met the Mukisa Biscuits threshold

Holding

The court found the objection properly on paper raised pure points of law, but on applying the test, the grounds of res judicata and laches required ascertainment of facts and reference to pleadings, so the objection failed.

Reasoning

The court recited the Mukisa Biscuits test that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct. It adopted the George Kamau Kimani decision holding that res judicata cannot be raised by preliminary objection since it requires annexing pleadings from the previous suit. Once a court looks at facts and evidence, the objection ceases to be a pure point of law. The objection was therefore dismissed as unmeritorious.

p. 6
02

Whether the Applicants established a prima facie case for temporary injunction based on adverse possession

Holding

No. The Applicants failed to demonstrate when and how they dispossessed the Respondent of his title, so occupation of over 12 years did not prove adverse possession.

Reasoning

Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court held that in adverse possession the claimant must show peaceful, uninterrupted, exclusive possession for over 12 years with the intention of dispossessing the owner. The Applicants' own affidavit admitted the Respondent was the registered owner, and no point of dispossession was demonstrated. A prima facie case having failed, irreparable harm and balance of convenience fell away per Nguruman.

p. 7
03

Whether the Applicants were parties to ELC 233 of 2009 and thus barred from the present suit

Holding

It was not conclusively demonstrated that the Applicants were enjoined in ELC 233 of 2009; no court order allowing joinder was produced, and that question is a matter for full trial.

Reasoning

The Respondent annexed a judgment of Justice C.K. Yano in ELC 233 of 2009 and an application of December 18, 2009 seeking joinder of the 1st Applicant and 29 others as interested parties, but no order allowing that application was attached, and the judgment itself did not record such enjoinment. Whether the Applicants were parties and what claims they could make could not be decided at the interlocutory stage.

p. 6
04

Costs

Holding

Both the preliminary objection and the application failed, so each party was to bear its own costs.

Reasoning

Under Section 27(1) of the Civil Procedure Act, costs follow the event. Since the event was that both the Preliminary Objection and the Notice of Motion were unsuccessful, the court, in its discretion, directed that each party bear its own costs.

p. 8

Legal principles established

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  • A ground of res judicata cannot properly be raised by way of preliminary objection because it requires reference to pleadings and evidence from the previous suit; it is not a pure point of law.
  • In an adverse possession suit, occupation for over 12 years alone does not prove adverse possession; the claimant must demonstrate entry with the intention of dispossessing the registered owner and exclusive possession inconsistent with the owner's title.
  • Where a prima facie case is not established at the interlocutory stage, the court need not consider irreparable injury and balance of convenience.

Court orders

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  1. 1.The Notice of Preliminary Objection dated November 29, 2021 by the Respondent be and is hereby dismissed for being unmeritorious with no order as to costs
  2. 2.The Notice of Motion application dated November 5, 2021 by the 1st, 2nd, 3rd and 4th Applicants be and is hereby dismissed for lack of merit with no orders as to costs
  3. 3.The Originating Summons suit to be heard within the next 180 days from the date of the ruling, with parties to file and serve all necessary further documents within 21 days
  4. 4.The matter to be mentioned on September 28, 2022 for pre-trial conference and taking of directions under Order 37 Rules 16, 17, 18 and 19 of the Civil Procedure Rules, 2010, and fixing of a hearing date
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27(1)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 37 Rules 16, 17, 18 and 19
  • Limitation of Actions ActSection 7

Cases cited (10)

  • Shadrack K. Kimose & 148 others v Lomolo Limited
    [2014] eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Giella v Cassman Brown Company Limited
    [1973] EA 358
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    [1969] EA 696
  • Attorney General & another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • George Kamau Kimani & 4 others v The County Government of Trans-Nzoia & another
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • The Kenya Commercial Finance Co. Limited v Afraha Education Society
    [2001] Vol. 1 EA 86
  • Janendra Raichand Shah v Nassor Mohamed Nahdy & 3 others (HCCC/ELC 233 of 2009)
    ELC 233 of 2009, judgment of March 9, 2021 (C.K. Yano J)
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21 and Order 40 Rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wilson & 3 others v Shah (Environment and Land Case Civil Suit 225 of 2021) [2022] KEELC 2538 (KLR)", Case Analysis (2022). Not stated in judgment (Originating Summons filed November 5, 2021, with Notice of Motion of even date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2538/eng@2022-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.